February 12, 2012

"Unless we see a massive about-face (in public attitudes), 25 years from now people will look back at this and wonder why (equal marriage rights) took so long.

Chapman University lawprof John Eastman says:

"I hope [Justice Kennedy] won't be swayed by shifting public opinion, assuming there is a shift".... If the law is supposed to change along with public attitudes, he said, "the political process is adequate to the task. We don't need the courts."

Speaking of law that is/isn't changing with shifting public attitudes, I can't help changing the subject to the Constitution's Free Exercise Clause and the current flap over contraception and insurance coverage. An awful lot of conservatives — with Rush Limbaugh leading the pack — are endeavoring to shape public opinion about the meaning of these rights. Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say. Here's Rush:

The right to religious liberty in this context is unequivocal in our country and in the Constitution. It's right there in the Bill of Rights. Since when does a president have the power to threaten to issue a rule gutting religious liberty?

It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution. Have one theory of the Constitution and stick to it, clowns.

The First Amendment -- the Bill of Rights of the Constitution -- explicitly says that government shall have nothing to do with religion. You hear, do you not, the left constantly caterwauling, whining and moaning about "separation of church and state"?

Now, he's reached the Establishment Clause, and suddenly he's an arch-separation-of-church-and-state guy. Nice to trash "the left" for inconsistency, but what's more hypocritical than being inconsistent in order to trash the other guy for inconsistency?

I've been a law professor for a long time, so it's not as though this sort of thing shocks me. But I would like to help you see how much dishonesty/ignorance is on display here. What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

More Rush:

Whenever a religious Republican or conservative seeks political office [the left worries] about "the imposition of religious moral values on people," and say, "This is intolerable! This is intolerable. It's not permitted! It's a violation of the Constitution." So the left hates the Constitution when it's an impediment to what they want to do. When it supports what they want to do, they're the biggest constitutionalists in the world.

Gee, Rush (and many other conservatives) is an inconsistent hypocrite! One would think as a reasonably intelligent woman (and I assume you are a reasonably intelligent woman by your position as a law professor at a reasonably prestigious law school) who listens to Rush frequently, you would have figured this out long ago.

Um, in every single state (that would even be California & Maine) that has voted on the issue, gay marriage has failed.

But each time it comes up, the vote gets closer, and I bet if prop 8 is brought to a vote again, it will lose. And there is a real chance that if the issue comes to a vote in Washington in the fall (assuming the opponents even get it on the ballot), marriage equality will be approved.

It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution.

While there are other examples that could be used to create cognitive dissonance, the taxes to support the miltary angle is different in that having a military is a clearly recognized function of the Federal government. You have to reach quite a bit more to see contraception that way. So I think exceptions for people's beliefs tend to become more understandable as an issue gets more away from the core (i.e., indispensable) functions of the Federal government.

No, but there is no blanket right for religions to be exempt from secular laws, either. Even RFRA is dead. That's why making this issue about constitutional rights is a huge mistake. The focus should be on the policy's merits, its fairness, and its rationality. Making it about constitutionality when it so obviously is constitutional is just dumb.

Wait a minute. It just occurred to me, I said RFRA is dead but that only applies to its incorporation. In this case, the particular policy is a federal policy that is NOT an act of Congress so preemption would not apply. Given that, it's hard to see now how RFRA would not apply to this rule. Has anybody else thought of this?

If the constitution is about restricting the power of government to specific items then there is not inconsistency.

On the religious front (Rush's point):The federal government does not have the power to tell religious organizations what types of "fringe benefits" they must provide to employees. If they don't want to provide birth control then the constitution prevents the government from forcing them to do so.

On the same-sex marriage front:The government does not have the power to force private entities to treat same sex marriage in any particular way. If private entities want to honor it in insurance policies, contracts, etc. then that's wonderful. If they don't, well that's their right.

I'm not fully following your point of view, Ann - I think you haven't really made it clear. Obviously (to me), this isn't much of a constitutional question. On the other hand, I don't see it as being the same as paying one's taxes, the analogy that I've seen here and in other places. Would you feel equally comfortable with a law requiring a pacifist to fight in the army? This is somewhere in between. The Catholic Church isn't being required to use contraceptives, but they are required to buy them for people in a much more direct way than paying their taxes.

I guess that distinction is what prompted the Obama administration to offer the (otherwise idiotic) solution of having the insurance companies offer contraceptives for free. Clearly the hospital will end up paying for that as well, but it seems less direct?

I will add, as a constitutional argument, Karlan's argument is completely trumped by Eastman's. Given that the issue can be entirely remedied by legislation, public opinion polling doesn't need Justice Kennedy as its scribe.

It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution.

You made the supposed "hypocrisy" up out of whole cloth, unlessing of course gayness is now being advanced as some sort of a religious freedom. Is that where you're going with that?

Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say.

But these are not the only two possibilities! They may believe that the case law is in error. Though I'll grant you this much: if that's their position, they should say so instead of treating their own dissenting position as self-evident.

An invitation “to be my Valentine” on February 14 is against Islamic beliefs and would incur the wrath of Allah, Muslims were told today in the official Friday sermon prepared by the federal government.

The sermon warned Muslims against celebrating Valentine’s Day, which the federal Islamic authorities claimed was in breach of the tenets of their religion.

In the text of a sermon provided by the Department of Islamic Development Malaysia (Jakim) titled “Awas jerat Valentine” (Beware Valentine’s trap), Muslims were told that asking someone to be his or her “Valentine” could lead to idolatry.

And gays aren't repopulating, and neither are most Western European countries, you'd be pretty silly to assume gay marriage is the future.

What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

That's a false equivalency.

This isn't taxes. This is insurance. Non-government entities.

Even worse, this is a rule created by the Executive Branch.

Rule = Legislative Branch.

If this was ever going to be imposed, it should have been done by Congress, not through the Presidency.

Ask yourself this: if the point really is to ensure every woman has free contraceptives, why didn't HHS just announce that contraceptives will be given out for free (at any federal, state, or local government office), paid for out of our taxes?

The effect would have been the same. Religious liberty wouldn't have been affected. It would be entirely within the government's role to give away free stuff.

Since President Obama deliberately chose to not use such a direct method, his goal clearly isn't to just give free contraception to women.

It is absolutely fair game to question what that motive is. And since he went for religious institutions, the motivation is naked: erode religious liberty.

But aside from all that, you elide one basic but vital point: defending the nation is one of the functions specifically cited in the US Constitution. Taxes are specifically allowed to defend the nation. The pacifist gets the benefit of national defense whether or not they understand that benefit; in fact, they are allowed to be pacifists by the very fact of the military fighting for national interests at home and abroad.

There is no specific federal govt role to provide free contraception (or abortion, if you want to drag planned parenthood into it) in the US Constitution. The ability (note: they aren't "rights") to obtain contraception or an abortion depend on the freedom guaranteed by military force. There are no natural rights that depend on free contraception/abortion.

None.

But if you want to fight for people being able to earmark their taxes for whatever govt programs they want, and ensure their taxes don't go to something they don't want: I'm all for it.

Voluntary tax payments for all!!!

Let's do it.

I'm really hoping you push hard for this, Ms. Althouse. If not, you will be a bigger hypocrite than you claim Rush Limbaugh to be if you ever bring up pacifists paying taxes that go to military spending.

RFRA still applies to the federal government. Here's the key Supreme Court case about it, finding a religious exemption to the Controlled Substances Act.

And I'm seeing this discussed at various places, but Congress has the power to deny these exemptions. If we're at the level of statutory law, Congress gets to choose. RFRA states the general rule to be applied to federal statutes.

There's also an argument under the Free Exercise clause that once there are any exemptions, then you get to strict scrutiny.

There is NO constitutional right, under the Equal Protection Clause, Due Process Clause, or any other provision, that requires that the exercise of some right be subsidized by the government or any private individual.

Government has no business establishing itself up as some sort of supreme judge of religion, deciding what is sufficiently religious or not, or do any other action that excessively entangles itself in religion and inhibits religion, or otherwise injecting itself in the relationship between an individual and his or her church.Lemon v. Kurtzman, 403 U.S. 602 (1971)Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., ___ U.S. ___ (2012)

The gross infringement of free exercise of Catholic doctrine is not a merely incidental effect of a contraceptive mandate, which is itself not a generally applicable provision, but goes directly to the practice of Catholic doctrine (and the history of the mandate will show that this is purposely so) and is as violative of the free exercise of religion as would be prohibiting the sacramental use of bread and wine, or requiring the service of certain foods or use of certain modes of transportation, especially when there are far less burdensome means of accomplishing the government's intended ends.Employment Division v. Smith, 494 U.S. 872 (1990)Church of the Lukumi Babalu Aye v. City of Hialeah (91-948), 508 U.S. 520 (1993)

It is not within the power of the Commerce Clause to compel the purchase of any particular product. (see all the cases cited in the ObamaCare cases)

Even if the First Amendment did not exist, even if the United States did not exist, it would be beyond the power of government to compel the Catholic Church to violate her doctrine.

Words means things. As has been pointed out COUNTLESS TIMES here. The word "marriage" has an objective, ontological definition -- the joinder of a man and a woman, a male and a female. Now, one can engage in legal fictions, and say that up is down and 3 is 7 or "marriage" is possible between people of the same sex, or say that King Henry's marriage to Queen Catherine never existed, but it is a fiction, a lie. Government can do this by force, and it can even have the Supreme Court decree inanities about the freedom to choose your own existence in the universe (Casey), and it can seek to compel others to publicly recognize a lie as being truth, but it is still a lie.

Moreover, "gay" people have the EXACT SAME rights regarding marriage as do "straight" people -- a gay man is perfectly free to marry any woman who will have him, and a straight man has no ontological, existential, historical ability to "marry" another man.

The first amendment does prevent the government from establishing an official religion, even Secular Humanism, and I am not familiar with case law regarding Free Exercise clause but I would be surprised if it allows the Government to force them to provide insurance coverage that disagrees with a major tenant of their faith.

And regarding the religiously motivated pacifists who don't want to pay taxes that fund the military, the Military is one thing the constitution empowers the Federal Government to do

What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

I'm not a Constitutional Law Professor, so perhaps I just don't understand the thinking here. But Althouse (and in the NY Post, Kirsten Powers) seem to be arguing that because the government can and does tax us, they can compel us to spend our money on anything they wish. It no longer needs to be in the form of a tax.

So the Constitution protects the right for the government to control our pocketbooks, but it does not protect the right for the government to control our marriage laws.

Imagine that the argument were over gun control, not birth control. That women, through the ATFE's interpretation of sweeping gun legislation, had the right to free handguns; homeowner's or renter's insurance policies must now include a free handgun for any adult woman in the household who wants one.

Would the Amish (or Brady Campaign) object? Do they have any Constitutional basis for doing so? Anti-gun advocates would now be buying, through their homeowner's policies, handguns.

Different hypothetical: women have the same right to a free handgun, but now it is paid for by the government, and you go to the local SS Admin building to get it. Is that a different situation?

I would be okay with the latter, but the former is on thin ice. What is the difference?

In the former, the objector is paying directly for the objectionable object. In the latter, the payment is indirect, through general taxes. I see a distinction there.

Well, I see quite a few people squealing like stuck pigs because Ann pointed out what's obvious to anyone paying attention - conservatives are just as likely as liberals to lay constitutional (or other) principles aside for political purposes. I know that's hard for the conservatism never fails, the people fail conservatism crowd to swallow, but kudos for bringing it up.

Hagar says: If anyone still get married 25 years from now.

Actually, if that noted leftist Charles Murray is to be believed, marriage will be very common and stable among the dreaded elites (especially the liberal ones!) in our society then, as it is now. Among others, well...

It's no problem conceding lack of consistency among politicians and ideologues. Big deal.

That said, it remains to be seen whether our genial hostess has really caught one.

One line of argument is deference to legislative action; so in one case, the High Court is expected to defer to existing law on marriage; and in another, to Obamacare, and in another, to the pay-for-"free" contraceptives" mandate.

Another line of argument seems more consistent, however: the Constitution allows the federal government a narrow arena in which to act. It can tax--and it can spend; but it may not be able to mandate as much as it wishes, whether through legislation or executive edict.

Meanwhile, I have another question: is there a point at which Congress delegating essentially legislative action to the executive branch goes beyond the Constitution? Can one branch effectively put itself out of business? I seem to recall some Supreme Court decisions addressing that.

I realize there may not be a constitutional issue here, yet there is one all who care about (small-r) republican government ought to care about.

Would it not be more in tune with our (small r) republican values, to have had Obama's mandate on contraceptives enacted by Congress?

The right looks to the Bible, primarily, a book almost uniformly ridiculed by the left as a slapdash of superstition, and widely regarded as a fountain of intolerance.

Meanwhile, the CDC and Obama try to make amends through massive funding for AIDS research. How much money now goes to sexually spread diseases, spread primarily by Democrats?

25 years is a very short timeline. The misery of AIDS and other sexual diseases can now last on and on with better funding it might be cured, as can perhaps Hepatitus, and herpes, and other sexual diseases. But can they all be cured such that it becomes a safe activity to have anal sex with strangers? The future will last longer than twenty-five years and my guess there will be new diseases every few years that pop up since now many Democrats are having sex with animals in animal brothels. Zizek thinks it's our right to do this, and he is now one of the most important philosophers of the new left.

the right says that only procreative sex within a marriage is correct. Who's right in the long run may have something to do with disease curves, and it might take more like a thousand years to see who is right, and who will be left in the cemetery clutching their politics.

"the right says that only procreative sex within a marriage is correct."

What you've identified as the position of "the right" is actually the position of the Catholic Church and other religious bodies who share that view. While one can defend the equation of true conservatism with orthodox Christianity, that's not how most people think of "the right."

Lots of people who are on "the right" see no issue with using contraception, but favor waiting till marriage; others don't even care much about premarital sex, but perhaps they think it's good for society to promote certain values and be lenient about transgressions.

And then there are those who don't really care--until you want to spend taxes on it. I.e., they'd be fine with Planned Parenthood passing out condoms--but not with tax money.

So I think it's fair to say there's a good amount of diversity on "the right" about contraception, sex and public policy; there isn't one, consistent morality at all (I wish there were, but that's my job I guess).

Gay people have exactly the same rights to marry as straight people do. I am not allowed to marry any person I chose. I cannot marry my mother, sister, cousin, etc. With the family excluded, I can marry anyone of the opposite sex that would have me(a discouraging small figure) Homosexuals have the same right. A gay man may marry any person of the opposite sex, beyond family, that will have him, and vice versa for a lesbian woman.

The people who are arguing to expand the definition of marriage, I have a question for you. Where do you stop?

Why not polygamy? Because you say it's wrong? Sorry, hypocrite much?

what about incestuous marriages? Unhealthy? Not at all like sticking your you know what you know where.

Bestiality? Oops, army already trying to cover that one.

Necrophilia? No one gets hurt.

obviously, I delve into the absurd. But that's where the law takes us eventually.

Much like people arguing that if we just made the minimum wage larger, people wouldn't live in poverty. Sounds like a good idea. Let's have people "have" to make $10 an hour. Why stop there? Isn't $10.50 better? Well why not $12 then. $20, $50? That's stupid you argue now, and I say "Who are you to make such judgements?"

The only people looking to expand these definitions, are BY definition, absurdist.

No, but there is no blanket right for religions to be exempt from secular laws, either.

Many SSM opponents fear that with secular legal acceptance of SSM, the churches will eventually be pressured to accept/bless/perform same sex marriages. I always have thought that was a slippery slope argument, but Althouse's post and the thinking behind the contraception insurance mandate actually reinforce that idea.

Perhaps I'm a clown, but I like to think the Constitution actually does allow for some limits about what government can make us do.

Kirby Olson says: The future will last longer than twenty-five years and my guess there will be new diseases every few years that pop up since now many Democrats are having sex with animals in animal brothels.

I think Walgreen's and CVS are both open on Sundays. You can probably pick up your meds today. Sounds like you've run out.

A New Jersey judge ordered a Methodist owned retreat/conference center to host a same-sex "marriage." The reasoning being the facility was made available to members of the public, not just members of the Methodist church.

Well, of course the ruling may have unique facts, and it may be overturned, but there's an opening: if you allow anyone from "outside" to use your facilities, do you create that opening?

We have a gym at one church lots of people rent for receptions. I'm likely to set the policy that only members of the parish can use it, no outsiders. For this reason.

But if you have a retreat center, isn't everyone an "outsider"?

Plus, the retreat center might say, we cater to "our own folks" meaning those who share their values--can they do that and avoid this hitch?

If I have a marriage for a Catholic who is not a parishioner--can a Catholic who wants a same-sex marriage say I have to grant that request too?

I'm not sure I agree with you Ann. It could be argued that Employment Division vs. Smith was an "evolved" understanding of the law - a wrongly evolved understanding and one that shrunk the scope of valid Free Exercise claims - so in one sense, we could argue that conservatives here are arguing for a retrogressive understanding of the Constitution not a forwardly evolving one. I certainly agree that both sides often make arguments that are inconsistent about the Constitution. I'm not sure though, that what conservatives are doing in this case, and in the face of Employment Division, is the same as what same-sex marriage liberals are trying to do in terms of "evolving" our interpretations of constitutional provisions. That is, unless you define any attempt to influence interpretations of constitutional law as trying to make the Constitution "evolve," which would mean it is what everybody is doing all the time and therefore not worth you pointing out on either side.

"Gay people have exactly the same rights to marry as straight people do. I am not allowed to marry any person I chose. I cannot marry my mother, sister, cousin, etc. With the family excluded, I can marry anyone of the opposite sex that would have me(a discouraging small figure) Homosexuals have the same right. A gay man may marry any person of the opposite sex, beyond family, that will have him, and vice versa for a lesbian woman."

This is about the thousandth time I've read that argument, which is usually put forward like this, as if it's a solid insight that will advance the discussion.

Seriously, do you have any idea how bad it sounds to people who don't already agree with you? Are you trying to be annoying, or do you actually think this is helpful?

You can be oppossed to same sex marriage for wholly non-religious reasons.

Starting with- if it were such a great idea, then there would be at least ONE noted civilization in the past where it was widely prqacticed- and there isn't.

Second, if you accept the truth that marriage is relly about children and how to bear and raise them, which same sex proponents vehemently deny, then SSM again, makes zero sense in the grand scheme of things.

Next, if you follow the argument that you just made that either there is freedom of religion or there isn't, then legalization of SSM leads inevitably to legalization of polygamy and polygyny of all types. Arguoimng otherwise is nonsense. And that will change the civilization we licve in- for the worse. If you refuse to believe that then you're welcome, as a female, to move to Saudi Arabia (I'll contribute to your ticket) and enjoy all the blessings of being a woman in a polygamous society. Hope you enjoy wearing a chador...

Lregalizing SSM makes sense only if you believe that there is really no real meaning to marriage at all. One of the goals of the French revolutionaries was to mabolish marriage. They tried, and instead, took marriage out of the church and made it a power of government.

If SSM is legalized, the legalization itself will inevitably lead to its abolishment. Probably right after the polygamous Islamic population reaches the 20% tipping point and Sharia is introduced.

Limbaugh isn't being inconsistent regarding what the Constitution covers. The Constitution was never meant to be the sole source of guidance for everything in society. It was meant as a means of defining and limiting federal authority. It is one thing to find endless rights emanating from the penumbra and quite another to object when a clearly enumerated right is violated.

Among other things, the HHS ruling about providing contraception and abortion services strikes directly the practice of Catholicism as defined by the Church. Not merely because of the funding issue, but because it declares that parts of the Church - hospitals, universities, schools, rest homes, etc, - are not essential parts of the religion, but merely affiliated with it. This despite the fact that all those functions have been an integral part of the Church long before the Contitution existed.

Speaking of law that is/isn't changing with shifting public attitudes, I can't help changing the subject to the Constitution's Free Exercise Clause and the current flap over contraception and insurance coverage. An awful lot of conservatives — with Rush Limbaugh leading the pack — are endeavoring to shape public opinion about the meaning of these rights. Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say.

Folks like Limbaugh simply read the Constitution, not the varying rewrites the courts apply to the Constitution.

If you simply read the Constitution, Article I does not provide Congress with the power to mandate insurance coverage and, even if it did, the First Amendment's Free Exercise clause would appear to prohibit such mandates from infringing upon religious freedom.

Unlike the peyote decision, no one is harmed by declining to pay for employee contraception.

In sharp contrast, the Constitution nowhere guarantees a right to same sex marriage because such a concept was largely unknown until recently and can in no way be considered to be natural or fundamental.

Seriously, do you have any idea how bad it sounds to people who don't already agree with you? Are you trying to be annoying, or do you actually think this is helpful?

Seriously, do you have any idea how bad it sounds to people who don't agree with you when you engage in sophistry by continuing to equivocate and conflate the definition of a word --marriage-- to something it has never meant in the known 3,500 year history of human civilization? I mean, there are people who take these concepts seriously.

A New Jersey judge ordered a Methodist owned retreat/conference center to host a same-sex "marriage." The reasoning being the facility was made available to members of the public, not just members of the Methodist church.

Well, of course the ruling may have unique facts, and it may be overturned, but there's an opening: if you allow anyone from "outside" to use your facilities, do you create that opening?

And there's your opening for the State/King to require Catholic hospitals to perform abortions and sterilization.

Abortificants, forget the pill, it's the morning after pill which applies, the argument can be made that abortion is BC.

"This is about the thousandth time I've read that argument, which is usually put forward like this, as if it's a solid insight that will advance the discussion.

Seriously, do you have any idea how bad it sounds to people who don't already agree with you? Are you trying to be annoying, or do you actually think this is helpful?"

Bender and Carnifax have it right, though. Do you have any idea how bad YOUR argument sounds to people who don't believe it? We should change the historical meaning of marriage across all cultures, civilizations, and religions because well, it hurts the feelings of Gay people? Pro SSM arguments boil down to the fact that gays are screaming "ITS NOT FAIR!", and I suspect a lot of supporters are supporters because they're tired of the whining and want it to go away.

Life ain't fair. Every guy can't marry Liz Hurley, and every woman cannot marry George Clooney. And a guy can't marry a guy and a girl can't marry a girl, and in most states and most non-Islamic nations, you cannot marry your first cousin.

Since marriage has evolved across all cultures, not just Judeo-Christian ones, as between man and woman (or women), there's probably a good reason why. Which will forever remain a secret to the highly educated. The secret- it makes good sense.

I'm also not following the professor's line of argumentation here that concludes conservatives are being "hypocritical" with respect to the constitution.

Not sure if she's basing it on the non-church distinction in the rule that limits the scope of the the Obama contraceptive mandate, which would make the law one of general application that does not infringe free exercise of religion in the places where religion is actually practiced?

Even so, Oregon v. Smith denied a state benefit to religious followers who had claimed their Free Exercise right was being infringed by a general proscription on peyote use.

I don't see a direct parallel to Obama who seeks to compel religious organizations to provide private insurance coverage for services that violate the church doctrine and Free Exercise rights.

What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

A few thoughts come to mind:

1.) Join the priesthood or form a church and seek tax exemption. Isn't the Free Exercise clause the basis of churches being tax exempt entities?

2.) Give your money to charity and deduct it from taxable income.

Fact is, you can avoid paying war taxes. Meanwhile, the government can and does provide contraceptives by paying for them with tax dollars against the beliefs of some -- when the political support is there. That support just isn't there, Obama knows it, and that's why he resorts the the fiction that the insurance companies will pay for it.

All in line with the conservative arguments: (1) against the health insurance mandate penalty, which is you can't avoid as long as your alive, and (2) for mandatory taxation of non-exempt entities to pay for things the political process approves by majority.

So I'm not seeing the conservative hypocrisy across the range of related issues.

Well, now it gets really interesting, if this is the wedge, and more churches or religious orgs take it farther, I guess to avoid this is Catholic hospitals in the end, to stay open might only treat Catholics.

It sounds bad because it is bad and it is bad because it's ignoring the real crux of the matter, that SSM is about recognition of a between two people, not a right that attaches to individuals, and elevating that relationship to legitimate equal status in our society. Conservatives don't go there because nobody actually wants to tell their gay friends that their relationship is invalid morally, even when they're happy to tell them it's invalid legally. But conservatives lost that fight when they disconnected the and bits in terms of heterosexual relationships. They were happy to say the relationship was moral without there being marriage. Now everyone is happy to say it about same-sex couples too and once you get there you might as well add the legal part...We all know there is such a thing as moral shift. Once you go so far you lose all ground in preventing others from going even further.

Regardless, I wish everyone on both sides would stop talking about the right to marry, because it's not really what this is all about and everyone should know it. In many respects, conservatives keep pushing the arguments Althouse appears to find stupid only because of the way the left is talking about the issue -- as though it's all about individuals when it's actually about couples.

There's no parallel with Oregon v Smith .. one has individuals doing something illegal under claim of religious practice (in this case drugs, but why not animal or human sacrifice?) while the other case is people being forced to pay for the practice of others that they themselves opt out of.

How is what ObamaCare is trying to do any different than the New Jersey hospital that tried to force the nurses to participate in abortions or lose their jobs?

Obama admin tried (and failed) to dictate through EEOC on how churches can hire/fire their ministers, now this "rule" dictated out of the HHS because ObamaCare had to be passed before we could know what was in it.

RE: SSM ... what is to say that if SSM is held as a "Constitutional right" (and in the process claiming all of human history up to that moment was nothing but homophobic) that churches will be required to perform SSM or else lose their tax-exempt status? Or minimally, they will not allowed to perform any legal marriage at all (ala the Soviet model of a couple going to be "married" at a hall of justice, then sneaking into a church for a frowned-upon religious ceremony)

Why is the opposition to gay marriage necessary religious? The Puritans made marriage a civil institution because they recognized that it is not a religious institution. They may have had a point. The natural law argument, even if few scholars believe it nowadays, was understood to be secular at the time of the founding. We should remember that according to Mr. Jefferson, who is the source of the term "wall of separation," thought that natural law was inside the wall. After all, society needs a moral consensus to function. Jefferson thought reason could deliver that. Separationism is only one means of disestablishment. It works better when the state is small. And there's no reason why we should view current jurisprudence as dispositive about what the constitution means.

I don't find a right to heterosexual marriage in the constitution either.

Once again, the arguments of the religious right are nearly identical to those of the left. To whit; the constitution isn't about limited power of government, but of granting rights to the people.

Ultimately, the claim of the religious right clearly isn't that government should be limited, but rather over what powers not enumerated in the constitution the government should have. It is monumentally hypocritical for religious conservatives to claim that the government cannot require all insurers, regardless of who they insure, to cover contraception, but they do have the right to say two men cannot marry (and receive the legal and financial protections provided for under law.)

(It further seems to me that assuming the government has the right to dictate what coverage insurance companies offer, to simply state they must offer a contraception benefit does not violate the first amendment. However, carving out an exception for religions is a very clear violation of the first amendment.

The real lesson for the Catholic bishops is that they played with fire [by pushing for universal health care] and now complain when they get burned. If you use the power of government for your cause, don't be surprised when that same government uses their new powers against your cause. This is why there is limited government, but it's a lesson both the left and religious right seem to never learn.)

Of course, to people who feel that the only real discrimination in America is against white heterosexual Christians, the next few decades are going to come as quite a shock. And there will be a LOT of whining. And the anti-gay bile will increase.

BTW, it's not "gay marriage" as there is no sexual orientation test required to obtain a marriage license. Every person retains a right to enter into a marriage contract - but the marriage contract has specific qualifications:

You can't marry:

Your siblingAnother married personYour parentAgainst someone's consentSomeone of your same sexMore than one other person

Sometimes I can't believe Ann is a constitutional law professor. Ann argues from both sides as well. In one case this is what the constitution says (interpreted via SCOTUS opinions). On the other hand we have opinions asserted as fact.

Ann's last comment to this post is very illustrative of thought bias. Do you, Ann, know how bad your argument sounds to people who don't agree with you? The simple (read: basic - lacking substance) equal protection arg you always put forth uses tortured logic. Marriage throughout history has been considered an institution. It has only been relegated to status of civil law recently. Your take on this area is a complete tail wagging the dog. This is a culture war that has been waged for quite some time. The goal was to change hearts and minds and that was done through feelings and not logic. Just because public sentiment has changed does not mean those opposed have no basis. In this case you are using a effect to prove a cause. This does not rely on sound logic at all.

In an ideal world, sellers of insurance would offer various plans with different kinds of coverage so that diverse customers could purchase what they want.

But no. Government demands that you must cover this and you must cover that. So a customer comes along and says, "I don't want this or that, I want another thing." And the insurance company would like to sell what the customer wants to buy, but they can't.

In this situation, which happens to be the actual situation. The government is basically being a meddlesome asshole.

Please enlighten us with your opinion of the below hypothetical: a new republican administration and congress would ban all federal funding for abortion, ban the the tax deductibility of taxes paid to a state or local government that funds abortions and denies the tax exempt and charitable status of any entity the provides abortions or raises funds that are used to provide abortions and ban the deductibility of health insurance policies that provide for abortions.

That same congress and administration were to make health insurance a national market and that health insurance could be sold nationally with the above conditions applying to contraceptives and erectile dysfunction drugs and that a state or any state could allow the health insurance company to tailor a policy that the policyholder desires free of any mandates the state currently impose on the carriers in their respective states? The constitution provides for us to seek life, liberty and the pursuit of happiness but doesn't require someone else to subsidize our happiness. Imagine just how cheaper insurance would be for employers if they offered their employees a policy that only covers major medical and hospitalization.

As noted above by others, Limbaugh actually was simpleton enough to read the plain text of the constitution and not the 'amended' version of the courts. As for gay marriage as noted by other commenters until the last 30 years there has never been a society that openly has acknowledged gay marriage so your premise on it's face is incorrect. Should gays be allowed to marry? Personally I believe they should. But such a thing should not be imposed on society by the courts but rather through the political process. What the federal district court in CA did was a travesty and the judge should have been impeach and removed from office and barred for life from practicing law.

As for a religious angle in re: birth control though ..it's not about birth control, y'know. It's about sin.

...the Church is good with birth control. If you want to practice chastity or abstention, good on you. Celibacy, and maybe you'll be sainted. The rhythm method, also good.

What the Church doesn't and can't condone, is the killing - the murder - of the innocent.

Yeah, maybe you don't agree that in natura babies are, well, human. I'd get that. You'd be wrong in the biological sense, but if that's what it takes for you to maintain your ethical matrix, I do understand. I'm even sympathetic ...to a degree.

I also think it's wrong on levels beyond the biological perspective ...but I can see why you'd have to make such a legalistic distinction to be able to live with yourself (unless you were actually sociopathic).

But. The Church can't and won't make that rhetorical distinction.

The Church doesn't equivocate on the issue of murder (the "thou shalt not kill" is more properly "thou shalt not murder"): cardinal sin. Part of the Christian ethos. Not changeable. No compromise.

Nor can they equivocate on the more minor (in the overall sense) sin of sex out of wedlock. Y'know, that whole holy matrimony shtick.

...and gay "marriage" ditto (in the ecumenical sense).

Sin is also something at the very core of their foundational belief. Of course, if you reject the very notion of sin, you'd think this was just totally unsophisticated foolishness. Maybe to the point where you consider the whole ethos as suspect and a purely semantic construct inconsistent with reality; which kind of misses the point of a couple of thousand years (at least) of Western culture and history, eh?

...but when you try and abrogate those beliefs (whether they're your beliefs or not), or change them to something culturally current ...well, you're taking away the very essence of Christian beliefs, and practices of the Church.

And if the law is doing that ...WHICH IT IS ...then indeed, the act HAS made a distinction which DOES de facto recognize a secular "...an establishment of religion" ...the religion of secular humanism ...a system of enforceable belief in absentia of formal liturgy.

And abrogates first amendment protections the Founders specifically saw fit to include. (There wouldn't be a federal government, if those protections weren't included.)

The Church clearly sees this.

...what's shocking to me though, is that you don't. (If you do, you haven't made it clear, as you seem to be ignoring it.)

(And where and when does the 14th cancel the 1st? Sheesh.)

The Church is not stupid. (It is a 1700 year old institution. What is the inherent implication of almost two millennia of institutional continuity that the Left may be missing here? - They shouldn't shouldn't. Ignore it, I mean.)

The Church cannot be the Church, and allow this kind of coercion of its core beliefs to stand. It will fight.

I can tell you quite confidently: that edict will not stand.

---Y'know, sometimes I think that non-believers think that Christians are safe to push around. That's a bit of a mistake ...one which ignores centuries of Western history. Because when things get down to the nitty gritty of it, Christians are going to be as adamant and reactionary as any militant Islamist you've ever imagined. The Church pretty much rejected the idea of mildly acceptance to the whole "throw 'em to the lions" bit a long time ago.

There is also no right to straight marriage in the Constitution. Should we outlaw straight marriage? I think not. But if the commentor will take a look at the Declaration of Independence the commentor will perhaps be illuminated on the subject. Contained within that “pursuit of Happiness” phrase is all the reason the SCOTUS would need.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

I try to come to conclusions about issues by researching, reading and thinking about issues without regard to where an issue or opinion nominally falls in the political spectrum. I’ve never heard any argument against gay marriage that doesn’t boil down to a, “We don’t like the idea of gay marriage” argument. I try to keep an open mind and am willing to change my opinion. Give me a good argument, anti-gay marriage folks. So far I haven’t seen any on this comment thread.

So the Constitution protects the right for the government to control our pocketbooks, but it does not protect the right for the government to control our marriage laws.

I don’t know whether it was intended by the commentor but the above statement is actually a pro-gay marriage argument, as in, “The government cannot forbid gay marriage.”

At the time of the enactment of the constitution there was no need for the term marriage or gay marriage since marriage as institution between a man and a woman was known and accepted and considered foundational to society since time immemorial and gay marriage was a concept that no one had even considered so neither was deemed relevant to a document enumerating the powers of government and expression of individual innate rights.

I don’t know whether it was intended by the commentor but the above statement is actually a pro-gay marriage argument, as in, “The government cannot forbid gay marriage.”

That's not my position, that's what I interpret Althouse to be saying.

I am pro-gay marriage btw, but I do believe the government has the ability to define marriage while the Constitution protects religions from having to recognize/perform all the marriages the government declares acceptable.

But I'm not a law professor, I don't completely follow what she is saying, and so perhaps I am a clown.

No, the Constitution does not regulate all or even most deviant behaviors.

Why discriminate based on physical intercourse, especially when it is unproductive? The progressive philosophy would dictate that the institution of marriage be open to everyone. If we dispense with evolutionary fitness, then there is no legitimate reason to proceed with arbitrary discrimination.

This is merely a reflection of an enduring conflict between competing interests. Homosexuals, as well as Blacks, Jews, Hispanics, etc., are exploited to increase leverage as individuals and cooperatives seek to consolidate wealth, power, and standing in society. Don't underestimate the extortion conducted through emotional appeals, to a primitive instinct of human nature.

So, if the natural order is no longer the objective order, then what remains? How, exactly, do people define the fitness function?

Anyway, given the available evidence, it seems reasonable to recognize individual dignity and to afford tolerance to their voluntary behavior, but not normalization.

"No, but there is no blanket right for religions to be exempt from secular laws, either."

Though a clear preference to religious conviction, though not at all a preference without limits. Still, the burden of proving a necessity is on the State rather than the religion, no?

The State has to prove that something is necessary and then prove that there is no way less imposing on the religion to meet that necessity.

In the case of utterly "free" contraception, I don't think that the State can prove this is necessary. And if it could prove that it was necessary, there are clearly other ways to provide women with free contraception than forcing religious organizations to pay for it.

I think this is the first time I've seen Althouse engage with the dumb and bigoted arguments being made by those people opposed to gay marriage.

What is even funnier is you are the perfect example of This is about the thousandth time I've read that argument, which is usually put forward like this, as if it's a solid insight that will advance the discussion.

The equivalence argument is uninteresting. There are objective standards we can use to measure the quality of a policy or standard. This begins with the objective natural order and the axiomatic enlightened (i.e. conscious) order.

We can readily distinguish between different forms of exploitation, for example, between voluntary and involuntary. We can also recognize the compromises we accept in order to preserve the stability and viability of civilized society.

The Constitution includes a preamble which provides reasonable guidance to the compromises we may and should accept.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

In order to ensure optimal liberty for everyone, we must reject dreams of instant gratification, principally through redistributive and retributive change, but also through fraudulent and opportunistic exploitation. We must also, by definition, be capable of self-moderating behavior. Neither a tyranny by a minority or a majority is compatible with our stated ambitions.

Anyway, it would be helpful if they dispensed with the ridiculous appeals to emotion. The "same-sex marriage" is not of historical significance, other than it represents a departure from recognition of an undeniable natural order.

No, I will make one emotional appeal. As we remember America's "original sin", let us not resolve it through the commission of sin. The principal issue with slavery was that it withheld the assignment of dignity. Slavery is a combination of involuntary exploitation and constrained liberty, principally for the benefit of the slave holder (i.e. individual).

All right, one more emotional appeal. The remaining moral imperative is not to whom but when dignity should be assigned to human life.

For justices on the left, and others who dream of instant gratification without consequences, I don't think they want to be on the wrong side of history on the assignment of universal dignity.

Then who is forced? If you’re complaining about an insurance mandate...well we force insurance companies to adhere to tons of regulations. In return, the government gives those companies lots of handouts. For better or worse.

Then again...I’m trying to conduct a rational discussion with someone who thinks the gay rights discussion will wane because gay people aren’t “repopulating”. So maybe my idiocy is being displayed after all.

"I’ve never heard any argument against gay marriage that doesn’t boil down to a, 'We don’t like the idea of gay marriage' argument."_______________

I'll give it a shot, though I'm not totally wedded to the idea (heh): It would seem to depend on one's concept of what marriage is about. If it is about children, then one can argue that the dilution of the institution in any way is not best for society. Sure, sure, the counterargument is that it is love, not gender, that is most important to children. Nonetheless, only 21% of lesbian couples and only 5.2% of male gay couples have children in their households. It can therefore be claimed that children are not a priority for same sex marriage proponents. It doesn't matter that, despite a strong societal interest otherwise, many children live in single parent homes. Gay marriage can be said to dilute the purpose of marriage, because children aren't the primary focus of the practice.

If the societal purpose of marriage is to merely to encourage loving couples to live together (through tax advantages, etc.), then the above argument is moot.

"And regarding the religiously motivated pacifists who don't want to pay taxes that fund the military, the Military is one thing the constitution empowers the Federal Government to do."

A prescription rather than a proscription?

Religiously motivated pacifists used to have to comply with drafts, and serve during wartime like any other. Their conscientious objector status was honored by assigning them to tasks that did not include killing anyone. They were assigned to such things as battlefield medical teams.

These days one becomes a conscientious objector on a piecemeal basis and we tolerate it. What we ought to do when someone who freely and voluntarily enlists or enters officer training and then suddenly has a change of heart, is reassign them to medical teams so that they can pull the wounded from the line of fire and serve life rather than serve death in that way.

(True pacifists, religious or otherwise, have the present freedom to simply not volunteer.)

Taxes?

Allowing anyone to refuse to pay taxes for whatever thing they don't care to support is completely ridiculous. The proper place to make those arguments is in the political realm, such as the arguments about using tax dollars to pay for embryos to be conceived for the purpose of being destroyed in research. Losing that battle doesn't give anyone the right to simply not pay their taxes anymore, nor should it.

I think Althouse's original point about being on the wrong side of history is important for understanding the advances being made with gay rights.

At this point, people realize that gay marriage will be coming to America so someone has to be either particularly dumb not to understand this, or particularly hateful to be willing to continue to advocate against gay people knowing the judgment they will face from history.

"At this point, people realize that gay marriage will be coming to America so someone has to be either particularly dumb not to understand this, or particularly hateful to be willing to continue to advocate against gay people knowing the judgment they will face from history.”

Exactly. They are losing. They know it. The whining will get louder and the poor victims are going to employ the use of their fainting couches frequently in the coming years.

Unless the whole discussion becomes moot because the gays aren’t “repopulating”. (That is perhaps the most bizarre claim I’ve ever read on here).

I think that the "gay rights = marriage" thing will wane because the desirability of marriage will all but disappear.

As it is, it seems to me that most of the non-gay supporters of gay marriage support it because marriage is worthless so who really cares?

The notion that one should try to "be on the right side of History" in anything at all is weak tea, but I sure am seeing a lot of that lately. It elevates bending to peer pressure to a moral command.

Some people try to stand against what they view as damaging trends and try to raise their children to stand against peer pressure, to determine their own standards and hold to them. They might misapply this or be wrong about what is most important to stand against, but they are not wrong to do it, nor are they wrong about the weakening of families and the destruction of necessary social constructs. They are not delusional and they are not being mean.

The very strange thing about the normative arguments being made here in opposition to Althouse is that these arguments don't explain why the state must impose itself on either side.

There is no reason why the state need define or license marriage at all. Common law marriage makes clear that the state's licensing of marriage is subject to challenge by reality.

Furthermore, the definition of marriage as a religious practice does not preclude non-traditional marriage. In fact the very opposite. The Mormons defined polygamy as marriage within Victorian context. More recently, gay marriages have been blessed by clerics without any permission of the state. Twenty years ago I knew a lesbian couple married in a religious ceremony.

The constitutional fight over the licensing of marriage by the state is by definition a legal parsing of the word. The state no more defines its meaning in the greater world than the actions of any particular religion -- or of the actions of those that create a common law marriage without license.

And of COURSE all of you fawning over the obvious importance of agreeing with the majority saw no problem at all, indeed were supportive!, when the majority actively ostracized and condemned homosexuality?

"Ah... same sex marriage isn't the same unless and until the State requires churches to perform them.”

"Yes, because the state is always commanding churches to perform straight marriages.

Are we running out of straw men yet?"

Ah, how cute! I made a comment saying that gay marriage did not infringe on any religion, at present, and wouldn't do so unless the State forced churches who disapproved to marry gay couples (or rent their facilities or...)

The notion that one should try to "be on the right side of History" in anything at all is weak tea (meant to be in italics, but blogger won't accept my tags)

I would love it if somebody on this forum would explain what it means to "be on the wrong side of history." Basically, this sounds to me a little bit like the mirror-image of people always wanting to claim that they listened to the band before they hit it platinum.

"Seriously, do you have any idea how bad it sounds to people who don't agree with you when you engage in sophistry by continuing to equivocate and conflate the definition of a word --marriage-- to something it has never meant in the known 3,500 year history of human civilization? I mean, there are people who take these concepts seriously."

When have I made an argument that constitutional law depends on the "definition of a word -- marriage"?

Marriage isn't in the Constitution. We're talking about the meaning of things like "equal protection of the laws" and "due process of law." And even that isn't about looking up words like "equal" and "due" in old dictionaries.

"Children aren’t the primary focus of fantasy football. Therefore fantasy football can be said to dilute the purpose of marriage."__________

Lol. However, fantasy footballers don't claim their activity should be granted the equal attention of society as marriage. Is someone as interested in schools if they don't have children? If so, why? Because having well-educated children is better for society. Which takes us back to the primacy of child-rearing, again.

"How is what ObamaCare is trying to do any different than the New Jersey hospital that tried to force the nurses to participate in abortions or lose their jobs?"

No one is forcing anyone to get or give abortions or to use or dispense birth control. This is about people who consume health care being forced to pay into a fund that then covers treatments that individuals are free to choose whether or not to use.

The religious problem is about contributing to the fund, which is why I compared the argument to the one pacifists make about paying taxes that pay for wars.

In Smith the court (Scalia) ruled that government could regulate religious practices if not specific to a religion. A poor summary, but close I think.

In doing so Scalia abandoned a plain text reading and applied a "common sense" approach.

He also disregarded certain precedents which required a "compelling interest" for the government to regulate religion.

Congress, partially in response to Smith, passed RFRA which supported the "compelling interest" argument. It had nearly unanimous support.

The court upheld RFRA in regard to Federal law/regulation. Not too sure on this one. Would a Federal regulation prohibiting religious peyote use hold up post RFRA without a winning "compelling interest" argument?

So, Rush is a hypocrite because he supports a plain text interpretation of the 2A but doesn't support a non-existant plain test right to SSM.

I couldn't find Rush's opinion on "compelling interest" but if he supports the right to yell fire in a crowded theater you've got him dead to rights.

I'm sure I'm in over my head in disagreeing with a law professor, so please be gentle. Like a Kennedy would with an intern.

"The religious problem is about contributing to the fund, which is why I compared the argument to the one pacifists make about paying taxes that pay for wars."

I don't think that works. There is only one fund that pays for the military. There are numerous funds that pay for health insurance and medical care and people have the freedom to get from one or the other or a bit from several.

Granted, the push for some version of national health care pushes us toward a single fund in that as well, but we're not there yet.

"Bender and Carnifax have it right, though. Do you have any idea how bad YOUR argument sounds to people who don't believe it? We should change the historical meaning of marriage across all cultures, civilizations, and religions because well, it hurts the feelings of Gay people?"

When have I ever made an argument based on changing the meaning of the word marriage? The law doesn't care how words are defined except to the extent that there are applicable provisions of law with words in them that need to be understood and applied to resolve a dispute.

The question isn't what "marriage," the word, means, but what the constitutional law at issue means and how it applies to the question of how a particular action of government should be judged. What is the power of government? How can government impose on and restrict individual human beings? You are free to think anything you want about what the word "marriage" means, but the legal question is whether the government can maintain an institution that includes some associations between individuals and excludes other.

If the argument is they can do that with "marriage," the question is what legitimate interest supports an exercise of government power? One argument is that the legitimate interest is to express the people's understanding of the meaning of a word. Is that enough? That's the issue.

"Pro SSM arguments boil down to the fact that gays are screaming "ITS NOT FAIR!", and I suspect a lot of supporters are supporters because they're tired of the whining and want it to go away."

The issue shouldn't depend on who's more annoying or more passionate in expressing opinions about the scope of government power and individual entitlement. Test out what you really think here by applying it to the asserted individual right to bear arms, which the Supreme Court finally recognized a few years ago. One could say that there were years of "screaming" "We have a right" and the opponents got tired of resisting. How do you feel about my putting it that way? Be consistent!

"Life ain't fair. Every guy can't marry Liz Hurley, and every woman cannot marry George Clooney. And a guy can't marry a guy and a girl can't marry a girl, and in most states and most non-Islamic nations, you cannot marry your first cousin."

The question of what you can achieve in as you exercise your own effort to get to what you want in life is entirely different from what opportunities the government closes off to you. I'm surprised conservatives find it so easy to forget to care about overweening government power. I thought conservatives like to say people deserve equal opportunity but no equal results. You do have an equal opportunity to try to get a beautiful man/woman to love you, but you'll probably fail to get what you want. That's not at all the same as being denied the opportunity by law.

"Since marriage has evolved across all cultures, not just Judeo-Christian ones, as between man and woman (or women), there's probably a good reason why. Which will forever remain a secret to the highly educated. The secret- it makes good sense."

Then you be sure, as you go out on your personal journey in life, exercising your efforts, to marry someone of the opposite sex. But if your orientation is, honestly, same-sex, you'd better tell your chosen opposite sex partner, because it's really a rotten thing to do to marry someone you're not sexually attracted to, unless that person knows exactly what's going on. You may be happy with the self-imposed limitation: I will not try to form a sexual relationship with a person of my sex. But to say because you want that limitation government should impose it on all is a different matter indeed. If you feel like implementing your preferences as laws that bind everyone, you need to support government power to do that.

Conservatives should ask why government has the power. Limited government. It's a conservative value.

"I don't think that works. There is only one fund that pays for the military. There are numerous funds that pay for health insurance and medical care and people have the freedom to get from one or the other or a bit from several."

Why doesn't government have the power to set one standard that binds all, for example, as with minimum wage? Uniformity is sometimes a good value, eliminating competition over something. It's done all the time.

You might say I prefer the diversity of the market, but that doesn't establish that the federal government doesn't have the power to opt for uniformity.

Presumably, in the case of preventive care, it saves money in the long run, but if one company offers it and another doesn't, and people switch around, then the company that paid for the preventive care doesn't reap the savings that accrues down the road.

Anyway, that's a policy argument, and it's a political decision. That's separate from the constitutional question whether Congress has the power.

"So, the argument is that the rationale for government inserting itself into the marriage situation is that it, perhaps incorrectly, did so in the first place?"

Incorrectly? That's a policy question. It might be better, given where we are now, not to draw the line at married/unmarried. That wasn't obvious at the time government started drawing that line. The institution doesn't have to exist, but it does, and since it does, the government has to follow the constitutional rules about the limits of power.

I supect that the question of "getting on the right side of history" is key here. It reflects the Whiggish idea that history is a process that moves ever forward and upward. Given the way sexuality is taught in our schools, it is highly likely that gay marriage will become common, if not universal among the states in the not too distant future. That does not mean, however, in 150years, it might not be eliminated, again in the name of history. By then, science may also have determined that biological differences between the sexes matter more than we think today--or perhaps not. . . .

A related point here is Jefferson's belief that religion was dying. Jefferson thought that because of disestablishment in 50 years everyone in America would be a Unitarian. Were that the case, then there would be fewer problems in our establishment jurisprudence.

It would be easier to define religion if the Catholic Church weren't so large. To the Church, providing for the poor is a religious activity. But they wish to do it in a fashion consistent with Catholic teahing. Is charity a state function? Why or why not?

One could argue that there is a strict belief/ action distinction. That presumes that religion is only about belief and thought (and worship), and not about action. The trouble is that most religions don't fit into that box. That Jefferson was wrong about the way history was going is important. His error means that the Church is very much with us, as is the reality that charity hospitals are often run by churches and other religious institutions. Getting right with history did not mean what he exepceted.

Were the state out of the charity business, this would not be a problem. The trouble is that that state has grown and is invading space that formerly belonged to religions, and perhaps by right belongs to them in general. And now we're trying to apply the "wall of separation." The state, however, is intruding on the church here, not vice versa. That seems to be the way history has moved in America.

Classically speaking, marriage was a state institution, not a federal one, and public health was part of the "police" power which Hamilton noted was not a federal power in his defense of the constitutionality of the Bank. It might be a mistake to try to impose one system on all 50 states.

Diversity is probably a good here, if only the national government would recognize it.

What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

I would object to the hypothetical right-winger who attempts to tax the Catholic church in order to pay for XYZ war. Strongly and vehemently object.

Have one theory of the Constitution and stick to it, clowns.

Limbaugh's not a lawyer and his legal analysis is usually poor. But like many citizens he has no problem seeing the religion clauses in the Constitution. And he sees no gay marriage clause. That is a very basic and very obvious distinction between the two issues. And while one can certainly debate how to interpret the religion clauses, we all know there actually are religion clauses. We know there are because we can read, and the religion clauses are right there to be read. Your gay marriage clause is not there, and thus will always be open to attack.

"Conservatives should ask why government has the power. Limited government. It's a conservative value."

Yeah, right. For a lot of so-called "conservatives", government means exactly what it means to a lot of so-called "liberals"— a tool with which they can engineer society and control people. For a hell of a lot of "conservatives", the idea of severely limiting government power is flung right out the window when there's some "social ill" to be "cured".

There's no difference between these sorts of conservatives and leftists. They even have the same goal: utopia, through government coercion, by any means necessary.

And don't misunderstand me; I have no particular problem with socially conservative people, as long as they're the kind who understand that society and government are different things, and don't try to use secular power to run my life.

Those of you who want the State in the social engineering and religious ceremony licensing business, answer a question for me: if "marriage" is such a fundamental, natural and immutable institution, why do feel the secular State needs to define and regulate it? Why are you comfortable with the State defining and licensing a religious ceremony?

The only logical, conservative option is for the government to be removed entirely from the marriage business. Problem solved. Otherwise, you're acting just like Barack Obama, using the power of government to meddle in religious affairs.

I'm all for churches and other social groups having absolute authority over their own definition of marriage. Why entrust this sacred decision to a bunch of bureaucrats?

Why doesn't government have the power to set one standard that binds all, for example, as with minimum wage? Uniformity is sometimes a good value, eliminating competition over something. It's done all the time.

So why not just have 1 standard for everything then coming from Washington DC?

Who cares? This is the wrong question. As a homosexual, I couldn't give a flying fuck what so-and-so thinks about my relationship, or that so-and-so is "tolerant" of me, or that so-and-so thinks I'm going to roast in some sadomasochistic fantasy hell that they've cooked up. That's the point of removing this moral, social, religious and personal institution from the purview of the State, so that it doesn't matter what anyone thinks about it, from a public policy standpoint. I don't want to make Paul and Suzy Pious "accept" my marriage... I don't want it to be their business at all. If marriage were solely a question left up to each church or social organization, and not something to be decided by the State, it wouldn't be Paul and Suzy's business.

I want everyone to be able to follow their conscience, their faith, their morality, their philosophy as they see fit, and not to impose or accept impositions from the State on what are natural rights.

And Andy, I'm not sure you've been around long enough to notice, but Alex is just trolling. He/she will take opposing sides of the same issue in the same thread and, for some reason, people don't seem to notice and continue to waste their time arguing with him/her.

“I want everyone to be able to follow their conscience, their faith, their morality, their philosophy as they see fit, and not to impose or accept impositions from the State on what are natural rights.”

Case law is part of the complaint, so to rely on case law isn't refuting the position.

I know case law is part of the complaint, but that doesn't mean it makes sense to complain about case law as if it were something completely separate from the real Constitution. Case law is part of constitutional law. The Constitution has to be interpreted before it can be actually enforced. You can't just hand-wave away the case law as if it's irrelevant to what the Constitution means. The text of the Constitution doesn't do anything on its own, and the framers were smart enough to know that they were creating a document with a lot of vague phrases that would need to be interpreted by authorities in specific, difficult cases. You need to have actual human beings (judges, etc.) interpreting it in an official capacity. The fact that a talk-show host is willing to express random opinions on what the text means based on his personal views or political goals is beside the point.

The only logical, conservative option is for the government to be removed entirely from the marriage business. Problem solved. Otherwise, you're acting just like Barack Obama, using the power of government to meddle in religious affairs.

Well first of all, it's there and it's been there. And government is frequently involved in contracts, which is what marriage is. Is the problem the term? When did marriage become specifically a religious affair? That doesn't really seem obvious to me. Many cultures that don't have religion (or religion involved in marriage) still have marriage contracts.

I'm surprised conservatives find it so easy to forget to care about overweening government power.

Yes, you're right, conservatives believe in handing over all authority to unelected people in black robes. We will bow down before our unelected masters. If they say gay marriage, we follow. If they say kill the unborn, we follow. If they say own slaves, we follow. We love our authoritarians and cannot wait for their next decree!

Who's an authority? What makes them an authority? Why should I be forced to live under the whims and fancies of a so-called authority? Why should we be forced to abide by the decisions of old, dead judicial "authorities"?

I agree about the stupid arguments the right wing radio hosts are making about separation of church and state. The real issue with the employer mandate is both a takings issue and an issue of whether or not it is an appropriate regulation of interstate commerce. These issues apply not only to non-profits run by religious institutions but to all employers.

It is a vivid example of what is wrong with Obamacare. The political concerns of the current administration will trump the needs and concerns of employers and employees as to what is covered and how much it costs.

I hope the feminists are ready for the precedent they are setting when President Santorum or someone like him is appointing the head of HHS.

If marriage were formed purely by people writing their own contracts on a case-by-case basis (if that's what you're suggesting), the government would still need to be involved with marriage, and lawyers would become far more involved in people's lives.

Okay, I think you misunderstood the point of the exercise. That segregation (or more exactly those who were against desegregation) are an example of said phrase is nothing new. Articulating the precise connection between any specific examples and the meaning of the phrase is a little bit different. I was asking for the latter.

Let me help you out a little. Is it being on the wrong side of history to be against something that every one else believes is inevitable? Or something that actually in inevitable? Or something that everybody else thinks is more moral? Or none of the above?

Do you honestly not know the answer to this question so that you have to ask me? The Supreme Court has ultimate authority. Other federal courts and state courts also have authority subject to being overruled (by themselves) or reversed (by higher courts). You don't need to like this. You can fantasize about having a different system. But if you want to operate in the real world, you have to understand that this is the actual system.

History is on the side of ever-increasing freedom, which means eventually gay marriage will be legal in all nations, in all states. Which side of history do you want to be on? Freedom or slavery - it's your call.

You need to have actual human beings (judges, etc.) interpreting it in an official capacity. The fact that a talk-show host is willing to express random opinions on what the text means based on his personal views or political goals is beside the point.

And if you recognize that the State can make you pay taxes, you must recognize that they can make you spend your money on anything. Whether you are in a group (like an employer) or an individual.

The courts may rule on things like gay marriage and insurance mandates based partially on popular opinion. But expressing your opinion, if you are not an accredited authority, is clownish.

"I don't know. I think there is a lot of fear of the gays. It's considered "unnatural" and for religious folks is a ticket to hell."

Perhaps. And I support their right to those beliefs. I also support their right to advocate for those beliefs in the public arena. I support the right of people to hate other people, or to fear other people.

As long as they don't use the coercive force of the State to advance or impose those beliefs, that is.

If marriage were formed purely by people writing their own contracts on a case-by-case basis (if that's what you're suggesting), the government would still need to be involved with marriage, and lawyers would become far more involved in people's lives.

True. I've said for quite some time now that those who advocate the government not getting involved in marriage at all have likely not thought through the full implications of such a system. In Egypt, for example, there is no civil marriage (although there is civil divorce) and the result is many people who cannot get married because there is no civil authority under which they can do so, and their church refuses to recognize it. Human rights activists bemoan this situation a great deal. But perhaps we can take a few things from this:

1) It may not be more palatable to make marriage a purely religious institution, and2) Those who truly believe in same-sex marriage rights (if they really do believe it is a human right to marry the partner they want) in that situation may actually be forced to take more aggressive action against those churches which do not grant same-sex couples the right to marry. Human rights activists would be moaning and groaning still.

A much more likely solution is one like Europe, where the governmental authority to marry and church authority to marry are completely separate.

“Perhaps. And I support their right to those beliefs. I also support their right to advocate for those beliefs in the public arena. I support the right of people to hate other people, or to fear other people.

As long as they don't use the coercive force of the State to advance or impose those beliefs, that is.

And there's the rub.”

Palladian,

But hate and fear are not Judeo-Christian virtues which are what this country was founded on, correct?

And many in power exploit this hate and fear to remain or propel themselves into power, as we see every election cycle.

"That's a policy question. It might be better, given where we are now, not to draw the line at married/unmarried. That wasn't obvious at the time government started drawing that line."_______________

Of course, it's a policy question. Just as at one time the society decided that it was good government policy to encourage families over the single life, the question is does gay marriage serve an equally beneficial function as the traditionally-married family? That policy question has been addressed in numerous state initiatives, as well as DOMA. What has been happening is that subsequent court rulings refuse to let the resultant policy answer stand. So, the equal protection argument comes down to a statement that we when it comes to gays, we no longer consider traditional marriage worthy of defense as a policy question. Circular logic, for sure. And inconsistent, to boot, since we still allow policy determinations concerning marriage hold sway in other areas.